Court: breaking DRM for a “fair use” is legal

In another victory for fair use, a federal court says that simply bypassing …

A federal appeals court has just ruled that breaking through a digital security system to access software doesn't trigger the "anti-circumvention" provisions of the Digital Millennium Copyright Act. Any other interpretation of the DMCA, declared the United States Court of Appeals for the Fifth Circuit, would permit infringement liability for tapping into a work simply to "view it or to use it within the purview of 'fair use' permitted under the Copyright Act."

The ruling is already being hailed as another victory for fair use, following Monday's Library of Congress decision giving wide approval to iPhone jailbreaking and DVD CSS circumvention on similar grounds.

Dongle this

MGE UPS Inc. manufactures power backup devices for various medical systems and other devices. Company technicians use software to calibrate these systems automatically, but the code searches for an external security "dongle" attached to the laptop. No dongle with updated hardware key, no software launch.

Hackers, however, figured out how to bypass this dongle system. Then, an employee of PMI, which subcontracted to MGE to run the software, obtained the MGE software "from an unknown source," as the court put it.

When MGE learned about this circumvention, it sued PMI, which had been bought out by General Electric in 2001. MGE charged PMI with copyright infringement, misappropriation of trade secrets, unfair competition, conversion, and DMCA violations. A district court jury awarded MGE $4,624,000 in various damages, but the judge dismissed the DMCA claim. MGE took the case to the Fifth Circuit Court of Appeals.

Where's the infringement?

But this court's reading of the DMCA found MGE's appeal to be "too broad," noting Section 1201(a) of the US Code.

"No person shall circumvent a technological measure that effectively controls access to a work protected under this title," the law says (we added the italics). The "under this title" refers to Title 17—the entirety of US copyright law.

In other words, just circumventing the technology isn't enough to get into trouble with the DMCA. The circumvention must lead to some violation of copyright.

"MGE advocates too broad a definition of 'access'," the Fifth Circuit explained. "Their interpretation would permit liability under § 1201(a) for accessing a work simply to view it or to use it within the purview of 'fair use' permitted under the Copyright Act. Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA's anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners."

Besides, the court added, even if the dongle were in use, it would not prevent infringement—as in a legit user copying the code and distributing it in illegal ways—since there was no encryption present. And besides, MGE never presented evidence that PMI actually circumvented the software, simply that it used already-hacked code.

"Because the DMCA does not apply to mere use of a copyrighted work, and because MGE has not shown that GE/PMI circumvented MGE's software protections in violation of the DMCA," the district court "did not err" in dismissing MGE's DMCA claim, the Fifth Circuit concluded.

StealDVD

So the bottom line here appears to be that if a consumer breaks through the DRM on some software, what they do after that is the crucial determinant of whether they've run afoul of the DMCA.

At least one observer is already suggesting that this ruling potentially re-legalizes software like RealDVD. That software transferred DVD content to your hard drive for playback, complete with CSS encryption. But even this was too much for the Motion Picture Association of America, which renamed the product "StealDVD" and took the product's owner RealNetworks to court.

Last August the US District Court for Northern California sided with MPAA in the form of a temporary injunction against RealNetworks.

As for fair use, it "is not a defense to trafficking in products used to circumvent effective technological measures that prevent unauthorized access to, or unauthorized copying of, a copyrighted work," judge Marylin Patel wrote. "[F]air use can never be an affirmative defense to the act of gaining unauthorized access." Eventually RealNetworks gave up on an appeal of the injunction, settled with the MPAA, and reigned in the product.

Now, however, we have a very different interpretation of the matter. We contacted MGE to find out whether they'll appeal this ruling to the Supreme Court, but did not receive a reply as we went to press.

82 Reader Comments

I'm glad to see some common sense peek out from behind the DMCA cloud.

I feel like celebrating. This is almost good as my birthday. Hell, I couldn't get a better present than this. The DMCA never stopped me from breaking encryption to rip my DVDs to my media center, but I'm glad to see that it's no longer an issue.

So back in the day, we had 'animated discussions' of whether, when you circumvented protection mechanisms in order to install a retail purchased copy of OSX on your Dell, you were, because of having circumvented a protection mechanism, automatically in breach of copyright and the DMCA.

And if this says what it seems to, then the answer is no. Only if to install your copy of OSX on your Dell is IN ITSELF a breach of copyright, are you in breach of the DMCA.

Now, given S117, it is a bit hard to see how the act can, in itself, be a breach of copyright. So this means you seem to have been given a clear shot at goal, the keeper having run shivering to the side of the pitch, all the other players well away from you, and the Ref standing a couple of yards to one side, cheering you on. If prosecuted you will simply say, I bought it, I made only the adaptations that were essential to use with a machine, the machine of my choice, and yes, I hacked around the protection mechanisms, but it was to do something which was, in itself, perfectly lawful.

Oh, and by the way, you will add - I just jailbroke my iPhone too. Want to make something of it?

The case did not cover fair use, GE admitted 5 counts of copyright infringement, and the comments about fair-use are parenthetical to the actual case at issue. Furthermore, the judges' reasoning was sloppy and avoided some key distinctions.

The LoC's ruling on exemptions (especially for DVDs) is far more important with regard to fair-use.

This falls into the 'too good to be true' category. Believe me, I want it to be true, but enough big players are going to get involved to push this to the Supreme's, and with enough other cases already gone ahead taking the opposite tack, I'd be suprised it survived

Alas! I do believe that the dragon known as the DMCA has finally been chased back to his cave, no longer allowed to harass and harm us common folk who are just trying to get "fair use" out of the products we purchase. Woohoo!!

Um...no sh*t, sherlock? Anything deemed Fair Use is "legal" (though that is a really bad way to phrase it as well, considering it is decided on a case-by-case basis...)

Fair Use is not a blanket ruling. Ever. It does not state "this is legal" or "this is not legal". Even when deemed Fair Use, it is *still* copyright infringement...just non-liable.

The amount of bad press regarding what Fair Use is and is not is just mind-boggling. It seems most people have no clue what it functions as, and that the press is absolutely intent on fostering any misconception regarding it that they can....

This is indeed a major change in interpretation. To go from "if the work is copyrighted, no bypassing DRM unless we specifically exempt you" to "bypassing DRM is perfectly fine as long as you don't violate copyright" changes the game entirely.

Which is why this will get appealed higher than this level. And why we'll see new legislation proposed. But at least things are moving in the right direction!

This is excellent news for any US citizen and other citizens of the signatories countries of the 1996 WIPO Copyright Treaty. Especially concerning the anti-circumvention rules. Hopefully everyone outside the US is also paying attention the the recent development in US courts. Although the European Union Copyright Directive isn't as nearly as draconian as the DMCA, these rulings (albeit from domestic courts outside EU jurisdiction) reaffirm the gross mistake the anti-circumvent rules turned the DMCA into and put the necessary pressure on other countries not to follow with that mistake and on the ACTA to not repeat it.

As far as I'm concerned, as an European citizen, I was always allowed to circumvent any DRMA for purposes of backups and archiving. But the specter of this not always being the case always hanged in there. These rulings give me confidence that the end of draconian anti-circumvention rules and the preservation of copyright law is coming.

So back in the day, we had 'animated discussions' of whether, when you circumvented protection mechanisms in order to install a retail purchased copy of OSX on your Dell, you were, because of having circumvented a protection mechanism, automatically in breach of copyright and the DMCA.

And if this says what it seems to, then the answer is no. Only if to install your copy of OSX on your Dell is IN ITSELF a breach of copyright, are you in breach of the DMCA.

Now, given S117, it is a bit hard to see how the act can, in itself, be a breach of copyright. So this means you seem to have been given a clear shot at goal, the keeper having run shivering to the side of the pitch, all the other players well away from you, and the Ref standing a couple of yards to one side, cheering you on. If prosecuted you will simply say, I bought it, I made only the adaptations that were essential to use with a machine, the machine of my choice, and yes, I hacked around the protection mechanisms, but it was to do something which was, in itself, perfectly lawful.

Oh, and by the way, you will add - I just jailbroke my iPhone too. Want to make something of it?

I believe you may be breaching the license agreement installing it on non-apple hardware though...

I'm glad to see some common sense peek out from behind the DMCA cloud.

I feel like celebrating. This is almost good as my birthday. Hell, I couldn't get a better present than this. The DMCA never stopped me from breaking encryption to rip my DVDs to my media center, but I'm glad to see that it's no longer an issue.

Well, today is my b-day, and I'm happy for this interpretation of the DMCA for the same reason as you, so I'll celebrate this along with myself

The amount of bad press regarding what Fair Use is and is not is just mind-boggling ... Come on, Ars.. tell it like it is.

It looks like they explained exactly what you wanted by quoting Judge Patel from the MPAA v RealNetworks case. What's the problem?

Quote:

As for fair use, it "is not a defense to trafficking in products used to circumvent effective technological measures that prevent unauthorized access to, or unauthorized copying of, a copyrighted work," judge Marylin Patel wrote. "[F]air use can never be an affirmative defense to the act of gaining unauthorized access." Eventually RealNetworks gave up on an appeal of the injunction, settled with the MPAA, and reigned in the product.

Also: Happy b-day, skicow! Wouldn't advise spending too much more time thinking about copyright though, it might be depressing. Go out and have fun

a little rain here, the case against RealDVD wont be too affected by that ruling. what's to prevent the RealDVD user to potentially store rental disks via RealDVD rather than just restricting themselves to their owned discs?

prevention of infringement will be the stronger argument in that case...

What about the use of the tools that actually do the DRM bypassing or the trafficking in said tools? What ruling has been given in regards to them?

Even with this ruling and the one from yesterday, it still seems akin to repealing the "illegal to drink" part of prohibition while leaving the "illegal to possess" or the "illegal to buy" parts intact.

a little rain here, the case against RealDVD wont be too affected by that ruling. what's to prevent the RealDVD user to potentially store rental disks via RealDVD rather than just restricting themselves to their owned discs?

prevention of infringement will be the stronger argument in that case...

Nothing, but the possibility of infringement takes a backseat to Fair Use.

I'm glad to see courts standing up for fair use. It's been trampled on during the past couple decades. I hope the push to reinstate fair use continues. All these sophisticated security mechanisms are getting quite annoying when they get in the way of using the things I've purchased for purposes I'm allowed to use them for...not just those the producer thinks I should be using them for.

DickNervous wrote:

Alas! I do believe that the dragon known as the DMCA has finally been chased back to his cave, no longer allowed to harass and harm us common folk who are just trying to get "fair use" out of the products we purchase. Woohoo!!

Dragons find this offensive. I prefer to think of the DMCA as a troll. It's big, ugly, and lumbering. Now that belongs hidden in a cave! =P

OK. Does this mean its perfectly fine to convert my protected iTunes songs (m4p or mp4 or something) to mp3's so I can play my music on my mp3 player?If so - anyone have a recommendation on how to do this? I've searched for converters, none seem to do it with the protected files - the best thing I came across was just burning your protected music to CD, then reimporting it as mp3 - I don't wanna have to do that all the time though.

To my knowledge, you have to upgrade your .m4p files to iTunes Plus first. I don't think there is a cracker out there for the current version of FairPlay. (To do this, go to the iTunes Store and click "iTunes Plus" under Quick Links on the right hand side.)

Once you have .m4a files, you can get iTunes to do it: Preferences > General > Import Settings > [select the MP3 format you want]. Then highlight the music you want to convert in iTunes, right click it, and select “Create MP3 Version”.

I'm glad to see courts standing up for fair use. It's been trampled on during the past couple decades. I hope the push to reinstate fair use continues. All these sophisticated security mechanisms are getting quite annoying when they get in the way of using the things I've purchased for purposes I'm allowed to use them for...not just those the producer thinks I should be using them for.

DickNervous wrote:

Alas! I do believe that the dragon known as the DMCA has finally been chased back to his cave, no longer allowed to harass and harm us common folk who are just trying to get "fair use" out of the products we purchase. Woohoo!!

Dragons find this offensive. I prefer to think of the DMCA as a troll. It's big, ugly, and lumbering. Now that belongs hidden in a cave! =P

*steals a sheep and maiden*

lol!

While that may be true, most people don't cower in their homes because a troll is on the loose. They are relatively easy to escape from. You dragons on the other hand...

The "problem" is that Fair Use, as described in the title, makes certain things "legal"..without question.

This is simply not the case. Fair use doesn't make anything legal. Not even breaking DRM. It's a false statement, and it makes people think that Fair Use is somehow an easy out for certain uses. It isn't. Each copyright infringement case must still be heard in court in order to receive a finding of non-liability. Even in the specific cases outlined by the Register of Copyrights listed above and in the article yesterday.

All this means is that the Register of Copyrights has listed a few "hypothetical" situations where they believe that Fair Use arguments, used in court, would find a person involved in copyright infringement for these extremely specific instances, not liable for damages. It makes *nothing* legal..it simply provides a backing play by the Register that can be used in defense of liability.

I believe you may be breaching the license agreement installing it on non-apple hardware though...

I've said this before and will continue to say it until End User License Agreements (EULAs) are officially killed. EULAs are not legally binding as the buyer and seller must BOTH be aware of, read, and agree to any terms BEFORE the sale is made. Terms can not be dictated after a sale.

So this also applies to the Droid X thing, right? It has that chip that bricks the phone when you remove the Motorola UI or some such nonsense. If you own the phone, you can do with it as you please, is what LOC is saying.

Now, how does this figure in with OSX on a PC? Someone above mentioned being in breach of the Terms of Use/Licensing Agreement; which is all well and good, but is that a criminal offense? Maybe you're not eligible for tech support, and don't get security/software updates, but if you own the OS license and you own the PC, and LOC says do whatever the hell you want with the stuff you own, then.... what? I can legally put OSX on my PC now?

What about Linux on your PS3? Is this going too far off base? If I "own"/have/procured a copy of Ubuntu whatev, and own my PS3, can I install anything on it? ....Would OSX run on a PS3?

I'm glad to see some common sense peek out from behind the DMCA cloud.

I feel like celebrating. This is almost good as my birthday. Hell, I couldn't get a better present than this. The DMCA never stopped me from breaking encryption to rip my DVDs to my media center, but I'm glad to see that it's no longer an issue.

Well, today is my b-day, and I'm happy for this interpretation of the DMCA for the same reason as you, so I'll celebrate this along with myself

Happy Birthday, skicow.

"Here's to a long life and a merry one. A quick death and an easy one. A pretty girl and an honest one. A cold beer and another one!

On topic, it seems as though the pendulum is finally starting to swing the other direction. Perhaps the courts are starting to see that the corporations are pushing the limits too far on locking things down..

I believe you may be breaching the license agreement installing it on non-apple hardware though...

Yes, that is true, and this ruling also doesn't mean that any company now has to de-fang the DRM they've put in place. (The prohibitions against distributing software such as deCSS are not AFACT invalidated either). The key difference here is that a breach of a license agreement and a violation of federal copyright law are two *very* different beasts, with civil penalties for the latter being far more severe.

So, if Apple were to sue users who installed OS X on a non-Apple machine, they would have to use plain vanilla contract law as the basis for a claim, not the DMCA.

This just means you less likly to get in trouble by breaking DRM....lets see the law changed and less scoff worthy before we celebrate....

People are celebrating as the courts have actually seen fit to suggest DRM isn't the holy grail of scarcity and just another artificial marketplace for the **AA's of the world. That's quite huge since the courts are not in place to create law but, to uphold the law as written and interpret when necessary.

a little rain here, the case against RealDVD wont be too affected by that ruling. what's to prevent the RealDVD user to potentially store rental disks via RealDVD rather than just restricting themselves to their owned discs?

prevention of infringement will be the stronger argument in that case...

Nothing, but the possibility of infringement takes a backseat to Fair Use.

too bad this is not covered as a fair use exception, you can check the previous article on Jailbreaking to confirm this...

Hey there. Spelling police. "Eventually RealNetworks gave up on an appeal of the injunction, settled with the MPAA, and <<reigned>> in the product." Should read "Eventually RealNetworks gave up on an appeal of the injunction, settled with the MPAA, and <<reined>> in the product."

Matthew Lasar / Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz.